s.365 - General protections

Intelligent Monitoring Group Limited; Intelligent Monitoring Solutions Pty Ltd

General protections dismissal dispute - incorrect employer identified in application - amendment application - amendment allowed

• [1] Nurcan Emeli Bach filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 8 September 2025 which alleges she was dismissed in contravention of the general protections in the FW Act. The application identified the respondent employer as Intelligent Monitoring Group Limited (IMG). An employer response form was filed on 14 October 2025 which identified that Ms Bach's employer was Intelligent Monitoring Solutions Pty Ltd (IMS). Ms Bach sought leave to amend the application to name IMS as the respondent employer. The amendment application was opposed by IMG/IMS. I decided at the end of a hearing on 5 December 2025 to allow Ms Bach to amend her application to name IMS as the respondent employer. These are the reasons for my decision.

• [2] IMG/IMS raised concerns about Ms Bach's solicitor, Mohammed Kheir, being involved in the proceedings. IMG/IMS argued that I had only granted permission for Ms Bach to be represented by a barrister at a directions hearing on 6 November and that Mr Kheir had not been granted permission to represent Ms Bach. IMG/IMS' submissions proceed on a misunderstanding about the operation of s.596 of the FW Act. Permission can be granted for a party to be represented under s.596 of the FW Act. Permission does not attach to a specific representative.[1] Given I granted permission for Ms Bach to be represented on 6 November 2025, it was up to Ms Bach to select her legal representatives. I did not consider Mr Kheir's involvement in the matter weighed against allowing the amendment.

• [3] IMG/IMS argued that if I granted the amendment a new application would be created, and that Ms Bach would need an extension of time to pursue that application. IMG/IMS' submission is contrary to Full Bench authority.[2] As then Deputy President Asbury stated in CFMEU v WorkPac Pty Ltd[3]:

"It is well established that the Commission can amend an application using the power in s.586 of the Act by changing the identity of the respondent to an application without creating a new application."

• [4] IMG/IMS argued I should not exercise my discretion to allow the amendment due to the conduct of Ms Bach and Mr Kheir in naming the wrong employer and the delay in seeking to correct the error.

• [5] Mr Kheir provided the following evidence about why IMG was named in the application in a statement dated 14 November 2025 which he affirmed during the hearing:

"The error in naming the Respondent was entirely mine. It arose from my misunderstanding of the corporate structure and the way the companies were represented in the documents provided. At no time did the Applicant attempt to mislead the Commission or to bring any entity into disrepute. I accept full responsibility for the error."

• [6] Ms Bach provided evidence during the hearing on 5 December 2025 and confirmed that the naming of the wrong employer in the application arose from Mr Kheir's error.

• [7] IMG/IMS suggested that the naming of IMG as the respondent employer was a deliberate strategy from Ms Bach and her legal team. I reject that submission. Mr Kheir and Ms Bach were cross-examined on their evidence during the hearing. I have no hesitation in accepting their evidence that the naming of the wrong employer was caused by Mr Kheir's error.

• [8] I decided not to allow Alexander Jason Elks to continue cross-examining Mr Kheir during the hearing on 5 December 2025. I took this step because I was satisfied that I had sufficient evidence to determine that it was Mr Kheir's error that led to the naming of the wrong employer in the application. Mr Elks' questions appeared primarily directed at embarrassing a solicitor that had owned up to their mistake and accepted responsibility for their error. I considered Mr Elks' suggestion that there was some ulterior motive for naming IMG as the respondent employer lacked credibility. I provided Mr Elks with the opportunity to undermine the explanation that it was Mr Kheir's error that resulted in IMG being named as the respondent employer through cross-examination of Mr Kheir and Ms Bach. Mr Elks did not get remotely close to undermining their evidence. I am confident any further questioning of Mr Kheir from Mr Elks would have been equally unsuccessful.

• [9] IMG/IMS argued it would be contrary to procedural fairness and natural justice to allow the amendment. The grounds relied upon in support of this argument largely replicate the other arguments made by IMG/IMS in opposition to the granting of the amendment.

• [10] As I identified during the hearing on 5 December 2025, no jurisdictional defect arises if an application under s.365 of the FW Act fails to name the correct entity as the former employer of the applicant.[4] Therefore, if I did not allow the amendment, I would proceed to issue a certificate naming IMG as the respondent. I would not dismiss the application as urged by IMG/IMS. It is likely that Ms Bach would then proceed to name IMS as the respondent to any court application and the fact that IMG appears as the respondent on the certificate issued by the Commission would not prevent Ms Bach naming IMS as a respondent to a court application.[5] I considered this all weighs in favour of taking the opportunity to correct the name of the employer respondent at this point so the parties can focus their attention on the substance of the dispute in any further litigation.

• [11] I considered it was clearly appropriate to exercise my discretion to allow Ms Bach to amend her application to name IMS as the respondent employer. Ms Bach should not be prevented by an error from her solicitor from being able to name the correct employer respondent to the application. There is little or no prejudice to IMG/IMS from allowing the amendment. IMG/IMS will have a full opportunity to defend the claim if Ms Bach proceeds with a court application.

• [12] I also considered refusing to allow the amendment would result in the prioritising of legal forms and technicalities over equity, good conscience, and the merits of the matter.[6]

• [13] For these reasons, I allowed Ms Bach to amend her application to name IMS as the respondent employer.

• [14] The matter did not resolve during conciliation on 5 December 2025. I will be issuing a certificate pursuant to s.368 of the FW Act.

Mr H Pararajasingham of counsel instructed by MK Allan Lawyers representing Ms Bach_._

[1] New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [24].

[2] Mr David Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371; Lile Sinden v HDR Inc.; HDR Pty Limited [2018] FWCFB 6934.

[3] [2017] FWC 1735 at [56].

[4] Joshua Zhou v I-Ping Yang [2025] FWCFB 206 at [20].

[5] Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [34] and [35].

[6] Lile Sinden v HDR Inc.; HDR Pty Limited [2018] FWCFB 6934 at [16].

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